COLETTE D. ANDERSON, Employee/Appellant, v. BANTA CATALOG and ZURICH NORTH AM., Employer-Insurer, and EMPLOYEE DEV. CORP., Intervenor/Cross-Appellant, and HARTFORD LIFE, Intervenor.
WORKERS’ COMPENSATION COURT OF APPEALS
JULY 7, 2008
CAUSATION - SUBSTANTIAL EVIDENCE; PRACTICE & PROCEDURE - MATTERS AT ISSUE. Where no date of any specific or Gillette-type injury subsequent to the date of the employee’s original low back and thoracic work injury was ever alleged or presented as an issue for litigation, where the judge reasonably concluded, in reliance on expert medical opinion, that the employee’s low back and thoracic work injury had fully resolved by June 23, 2006, and where the judge reasonably concluded that the employee’s right rotator cuff injury did not arise until well after her admitted thoracic and low back work injury, the compensation judge’s denial of benefits after June 23, 2006, was not clearly erroneous and unsupported by substantial evidence, notwithstanding the employee’s argument that her rotator cuff problems were a consequence of her low back and thoracic work injury.
REHABILITATION - FEES & EXPENSES. Where the employer and insurer had several times denied liability for the employee’s continuing rehabilitation, the employee’s chosen QRC continued to provide rehabilitation services to the employee at her own risk, and where the employer and insurer prevailed in their denial of liability for benefits after June 23, 2006, the compensation judge properly denied payment for the QRC’s services after June 23, 2006.
Determined by: Pederson, J., Johnson, C. J., and Rykken, J.
Compensation Judge: Jane Gordon Ertl
Attorneys: Arnold M. Bellis, Attorney at Law, Minneapolis, MN, for the Appellant. Larry J. Peterson, Peterson, Logren & Kilbury, St. Paul, MN, for the Respondents. Employee Development Corp., pro se, New Brighton, MN, Cross-Appellant.
WILLIAM R. PEDERSON, Judge
The employee appeals from the compensation judge's denial of benefits related to a right shoulder condition allegedly related to the employee’s work-related back and neck injury, and intervenor Employee Development Corporation cross appeals from the judge’s denial of payment for related rehabilitation services. We affirm.
On October 22, 2005, Colette Anderson sustained a work-related injury to her back as she attempted to physically guide a three-hundred-pound paper hoist in the course of her work as a bindery helper with Banta Catalog. Ms. Anderson [the employee] was forty-three years old on that date and was earning a weekly wage of $752.00. On October 24, 2005, the employee saw Dr. W. Christopher Downey at North Memorial Medical Center, who reported that, immediately after the incident at work, the employee “started experiencing lower back discomfort that has now climbed up her back and in her shoulders,” as though “she has a fist digging into her shoulders between her shoulder blades, particularly on the left side.” Dr. Downey diagnosed “[m]uscle spasm, muscle pull, work related,” prescribed medication, and released the employee to return to work with temporary restrictions. The employee returned to the clinic on November 2, 2005, and saw osteopath Dr. Daniel Cohan, who assessed work-related right upper back/shoulder and lower back strain with spasm, prescribed continued medication and stretching exercises, and restricted the employee from working. Banta Catalog [the employer] and its insurer acknowledged liability for the injury and commenced payment of benefits.
On November 8, 2005, the employee was seen at the same clinic by Dr. Joan Trowbridge, who reported that the employee had had “a pulling/pushing injury to her low back that radiates to the thoracic and previously up to the neck,” noting that “[h]er neck now is 0/10, upper back 0/10, low back she rates 8/10.” Dr. Trowbridge diagnosed musculoskeletal back pain, changed the employee’s medications, and released her to return to light-duty work with the employer. On November 15, 2005, Dr. Trowbridge noted that the employee was being treated for specifically a “thoracic lumbar back sprain” from which Dr. Trowbridge anticipated full recovery. On December 6, 2005, Dr. Trowbridge reported that the employee’s back and neck exams were improved, that her MRI studies were negative, that she had decreased muscle tension, with excellent flexion, extension, rotation, and lateral bending, intact deep tendon reflexes, and normal tone, bulk and strength throughout. A month later, on January 6, 2006, Dr. Trowbridge noted that the employee had completed physical therapy and had “full range of motion of the back, flexion, extension, rotation and lateral bending,” with no paraspinal tenderness. On February 6, 2006, Dr. Trowbridge reported that on a recent Friday the employee had had to leave work with 10/10 back pain but that, after resting at home over the weekend, she no longer had any pain.
On May 22, 2006, the employee was examined for the employer and insurer by orthopedic surgeon Dr. John Dowdle. In his report on May 23, 2006, Dr. Dowdle indicated that the employee had presented with complaints of “pain in the low back, mid back, and both shoulders.” Upon interview and examination of the employee and review of her medical records, Dr. Dowdle diagnosed (1) a resolved myoligamentous injury of the cervical, thoracic, and lumbar spine by history, (2) a currently normal neck, mid back, and low back, (3) right shoulder impingement syndrome, and (4) subjective complaints without supportive objective findings. Upon review of the employee’s records, Dr. Dowdle concluded that there was “not a clear, direct, relationship between the shoulder complaints and the onset of an injury on October 22, 2005.” He opined that the injury had resolved, that any care beyond three months after the October 22, 2005, date of injury was not necessary or related to it, that the employee had reached maximum medical improvement [MMI] by January 22, 2006, and that the employee was capable of working full time without any work injury-related physical restrictions but should have her right shoulder evaluated.
The employee evidently continued to work for the employer on a light-duty basis, with restrictions related to her right shoulder condition, until May 27, 2006. On June 6, 2006, she underwent an MRI scan of her right shoulder, which was read to reveal a partial thickness tear of her rotator cuff. On that same date, June 6, 2006, the employee was served with Dr. Dowdle’s report that the employee had reached MMI with regard to her work injury by January 22, 2006.
On June 8, 2006, the employee saw orthopedic surgeon and shoulder specialist Dr. Benjamin Gulli, who released the employee to work full time beginning June 9, 2006, but with limited use of her right arm. On June 9, 2006, the employer and insurer filed a notice of intention to discontinue [NOID] the employee’s temporary partial disability benefits, having discontinued payment on June 6, 2006. Notwithstanding her release to do so, the employee apparently did not return to full-time work, but instead, on June 13, 2006, filed an objection to discontinuance, alleging entitlement to temporary partial disability benefits continuing from October 22, 2005, together with a rehabilitation request, alleging entitlement to a consultation with QRC Brenda Seely. By June 16, 2006, the employee had received $5,016.36 in temporary partial disability benefits, and she received no workers’ compensation benefits subsequent to that date.
On June 27, 2006, the employee filed a claim petition, alleging entitlement to benefits consequent to a work injury on October 22, 2005, identifying the nature of the injury as a “low back muscle strain.” On that same date, Dr. Trowbridge reviewed and reported on Dr. Dowdle’s May 23, 2006, report, essentially disagreeing with his opinion, opining instead that the employee’s shoulder complaints and original complaints were all contiguous and that treatment beyond three months was necessary. Dr. Trowbridge stated in her report, “At the visit on June 1, 2006, is when [the employee] first complains of the right AC joint pain, which has persisted since that time.” In more direct response to Dr. Dowdle’s conclusions, Dr. Trowbridge went on to state, “Regarding the shoulder, my impression was she did have shoulder pain. I thought she was tender over the AC Joint. She subsequently has been shown to have rotator issues. . . . . I believe these are directly related to trying to get this patient back to work with the lifting restrictions.”
On June 29, 2006, the employer and insurer filed a rehabilitation response, in which they denied primary liability and work causation for the employee’s shoulder complaints and objected to payment for rehabilitation services. On the following day, June 30, 2006, the employee nevertheless began receiving rehabilitation assistance from QRC Brenda Seely, of the Employee Development Corporation [EDC]. On that same date, June 30, 2006, Dr. Trowbridge reported that the employee’s “[l]ow back pain has all resolved,” although she continued to complain of right shoulder and upper back pain and “[r]otator cuff tear maneuvers for strength cause her pain and she is weak in doing those.” On those findings, Dr. Trowbridge restricted the employee from working for one month. On July 23, 2006, Dr. Gulli recommended right rotator cuff surgery, and on July 27, 2006, Dr. Trowbridge, reporting that the employee’s “low back is fine,” advised the employee to remain off work until her shoulder surgery and rehabilitation were completed.
On July 31, 2006, Dr. Dowdle testified by deposition. After reviewing additional medical records and the employee’s June 6, 2006, MRI scan, it was Dr. Dowdle’s conclusion that the employee’s neck and back complaints were essentially subjective, that her shoulder complaints related to a rotator cuff tear that was not apparently related to her October 2005 work injury, and that she was capable of working with restrictions. On August 1, 2006, Dr. Trowbridge prepared another report, in which she stated, “as best I recall she had a good recovery of her lower back. The injury in question that is keeping her currently from work is the remaining rotator cuff tear and subsequent related upper back discomfort regarding that.”
On September 6, 2006, the employee underwent her scheduled right shoulder decompression rotator cuff repair, performed by Dr. Gulli, and on September 22, 2006, she was released to return to light duty work.
On December 11, 2006, QRC Seely filed a rehabilitation request, alleging entitlement to payment of outstanding bills for rehabilitation services to the employee. In a rehabilitation response dated December 20, 2006, the employer and insurer again denied primary liability for the condition at issue and so for payment for the services at issue.
On February 5, 2007, the employee was examined again for the employer and insurer by Dr. Dowdle. In his report on February 8, 2007, Dr. Dowdle reiterated his opinion that the employee’s right shoulder condition was unrelated to her October 22, 2005, work injury, and he concluded further that the employee had reached MMI with regard to that right shoulder condition. Dr. Dowdle’s report to this effect was served on the employee and her attorney on February 20, 2007.
On March 16, 2007, QRC Seely met with Dr. Gulli, who evidently noted that the employee’s overall right shoulder functioning had improved, that she now had almost full right shoulder range of motion and better strength, and that there was no need for a functional capacity evaluation to determine her shoulder-related restrictions. On that date, Dr. Gulli issued permanent restrictions against any reaching above shoulder level with her right arm, against more than occasional reaching above shoulder level with her left arm, against any lifting or carrying of over thirty pounds, and against more than limited lifting with her arm outstretched.
On March 20, 2007, Dr. Dowdle testified again by deposition, in part that the employee’s work injury had been a myoligamentous injury of the cervical, thoracic, and lumbar spine, which he described as “just a muscle strain” that was temporary and had resolved by the time of his examination of the employee on February 5, 2007. He diagnosed also “impingement syndrome of the right shoulder, status post decompression, and a partial rotator cuff tear.” He found, however, “no clear history of an injury that occurred in October of 2005 relative to the shoulder,” indicating that the condition was “an impingement and an acromion process that [the employee] was born with that has down-slope to it that impinges on the rotator cuff. That’s a lifelong process and that is the reason for her to have this condition that is present in her shoulder.” Dr. Dowdle further opined that the employee had reached MMI with regard to her shoulder condition, recommending that she avoid overhead lifting and reaching but concluding that she could continue doing her regular job.
On April 24, 2007, by letter to QRC Seely, counsel for the employer and insurer again objected to the QRC’s continuing work on the employee’s file. On May 8, 2007, the employee began a new job as a program coordinator at REM Health, Inc., where her hourly wage was $12.25. QRC Seely subsequently continued to monitor the employee’s activities. On August 3, 2007, by letter to the employee’s attorney, counsel for the employer and insurer again objected to continuing rehabilitation services, noting that the employee had been back to work in excess of sixty days and reiterating that the employer and insurer had denied primary liability for the employee’s right shoulder condition. In a report to the employee’s attorney on August 13, 2007, Dr. Gulli opined that the employee’s shoulder condition was “directly related to her work injury of approximately October 22, 2005,” and that it was his “further opinion that her neck problems are directly related to the shoulder problems.” Dr. Gulli recommended on that date that the employee permanently avoid any overhead or repetitive use of outstretched arms.
On September 17, 2007, Dr. Dowdle testified yet another time by deposition, in pertinent part reiterating his opinion that the employee’s spinal work injury had been temporary and was resolved and that she had no need for related restrictions or further treatment. He testified further that the employee was currently subject to a possible structural lesion of the right shoulder with a partial rotator cuff tear, unrelated to the employee’s work injury. He opined that, had the employee been subject to that type of medical condition as early as October of 2005, the records would have reflected it in “the types of complaints and evaluation at that time, but that was never in the medical record.”
The matter came on for hearing on September 18, 2007. Issues at hearing included whether or not the employee had sustained “a right shoulder injury on or about October 22, 2005,” whether she was entitled to rehabilitation services, and whether she was entitled to temporary total disability benefits from June 25, 2006, through May 8, 2007, while she was disabled related to a right shoulder condition. By findings and order filed December 10, 2007, the compensation judge ordered the employer and insurer to pay $1,706.29 in underpaid temporary partial disability benefits due for the period of October 23, 2005, through June 23, 2006, and that the employer pay any unpaid bills of intervenor EDC for rehabilitation services provided by QRC Seely up through June 23, 2006. The judge also concluded, however, that the employee had reached MMI with regard to her work-related back injury with service of Dr. Dowdle’s opinion to that effect on June 6, 2006, and that she “has not established that she sustained a right shoulder injury as a result of the incident of October 22, 2005.” On those conclusions, the judge denied the employee’s claim for temporary total disability benefits from June 24, 2006, through May 8, 2007, denied her claim for temporary partial disability benefits continuing from May 8, 2007, and ordered payment to EDC of unpaid bills for Ms. Seely’s rehabilitation services only through June 23, 2006, finding that “[a]fter that date the employee was not off work for her work-related back injury. The employee appeals, and EDC cross-appeals.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1. Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.” Id.
The compensation judge found that the employee’s right shoulder rotator cuff injury was not related to her October 22, 2005, work injury, explaining in her memorandum that, subsequent to her injury, the employee was followed only for thoracic and low back complaints, which fully resolved by the end of June 2006. On that conclusion, the judge denied the employee’s claim for benefits after June 23, 2006, and her QRC’s claim for payment for rehabilitation services provided to the employee after that date. The employee contends that her right shoulder rotator cuff injury is a consequence of “aggravation, stress, and strain to her right shoulder while working between November 9, 2005 and June 15, 2006, in her ongoing efforts to restore her pre-injury ability to [work]” and is therefore compensably related to her October 22, 2005, back injury. We are not persuaded.
As the judge explained in her memorandum, the employee’s right rotator cuff tear did not present itself as a problem until June of 2006, eight months after the employee’s admitted low and mid back injury, by which time the symptoms of that injury had all but disappeared. While it is true that the employee had earlier complained of general soreness in her upper back and even in her shoulders, it was not unreasonable for the compensation judge to view the employee’s right rotator cuff tear as a new and quite separate injury, occurring on a separate and different date neither identified nor alleged. As the judge notes, Dr. Trowbridge herself did not relate the employee’s right shoulder condition to her October 2005 work injury, concluding instead that it had some relationship to the employee’s work hardening, but there are no records of any work hardening incidents or events to support the doctor’s presumption. Moreover, and just as importantly, the employee did not, as the judge also notes, either raise as an issue or specifically testify to a new right shoulder problem as a result of work hardening. Nor did Dr. Gulli concur with Dr. Trowbridge in relating the condition to any work hardening activities. Dr. Gulli related the shoulder condition directly to the events of October 22, 2005, but the compensation judge reasonably opted to reject that opinion and to accept Dr. Dowdle’s opinion to the contrary. A trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985). Here there is no indication that Dr. Dowdle’s opinion was founded on any false premises.
The attorneys in this case spent what occupies over eighty pages of trial transcript discussing the issues to be litigated, and in all that time no date of any specific or Gillette-type injury subsequent to October 22, 2005, was ever alleged or presented as an issue for litigation. That being the case, and because it was not unreasonable for the judge to conclude that the employee’s right rotator cuff injury did not arise until well after her admitted October 22, 2005, thoracic and low back work injury, we affirm the compensation judge’s denial of benefits and of payment for rehabilitation services after June 23, 2006, by which date the employee’s thoracic and low back injury had reasonably resolved. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; see also Ortega v. Medallion Kitchens of Minn., slip op. (W.C.C.A. Apr. 3, 2000) (where the employee had not demonstrated any residual disability related to his work injury, both wage replacement and rehabilitation benefits were terminated pursuant to Kautz v. Setterlin Co., 410 N.W.2d 843, 40 W.C.D. 206 (Minn. 1987)). We see nothing in the letter brief of intervenor EDC to rebut the quite proper legal conclusion of the compensation judge, as expressed in her memorandum, that, once the employer and insurer had denied liability for the employee’s continuing rehabilitation - - which they did several times very directly - - QRC Seely continued her services to the employee at her own risk. See Sebion v. ADM Malting Division, slip op. (W.C.C.A. Feb. 12, 1997); Parker v. University of Minn., 64 W.C.D. 134, 142 (W.C.C.A. 2003) (“a QRC who continues to provide rehabilitation services during the pendency of a dispute over rehabilitation eligibility runs the risk of non-payment in the event that the employer prevails in the eventual hearing on the merits of the employee’s entitlement”). The employer and insurer have prevailed in their denial of liability for benefits after June 23, 2006, and rehabilitation services are included in those benefits for which they are not liable.
 According to QRC Seely’s report of April 10, 2007, which is contained in the employee’s pretrial statement, Petitioner’s Exhibit E.